Good in parts: clarity on severance

By Tony Bingham2020-08-05T05:00:00

An adjudication that is partially flawed can still be upheld in the areas in which it is sound, according to a recent appeal decision

Almost always an adjudicator is asked to decide a dispute that has several topics. The canny opponent will dig and delve for any topics that have not yet become a dispute – a “gotcha device”. That happened in the Scottish case of Dickie & Moore Ltd vs McLeish. If a topic or two in among the frogs are mere tadpoles then some judges say that the whole adjudication goes down the plughole. Other judges are willing to weed out the good bits – it’s called severance – and then enforce those good bits. Useful, therefore, that this Scottish case is at appeal court level (the Inner House of the Court of Session) and becomes very persuasive on the topic of severance. Persuasive in England as well.

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